The partition plan proposed last week raises several interesting questions.

1) The first question is what authority the UN has to slice up its member states. Security Council Resolution 1244 authorizes the UN administration in Kosovo to “facilitat[e] a political process designed to determine Kosovo’s future status.” Even though the Resolution pays lip service to Serbia’s “sovereignty and territorial integrity,” other provisions clearly indicate that any outcome of “negotiations between the parties for a settlement” that does not satisfy Albanian demands of independence will not be acceptable. (See Par. 11(f)). The negotiations appear to be window-dressing for a forced surrender of sovereignty.

Does S.C. Res. 1244 authorize the UNMIK to push for the partition of the country? Can an organ of the UN engineer the dismemberment of a member nation without a Security Council resolution specifically mandating it?

2) More fundamentally, does the Security Council have the power under the U.N. Charter to forcibly divide up its member states? Certainly the Charter does not convey such a power expressly. To be sure, the phrase “maintain or restore international peace and security” can be read as broadly as one wants – it could conceivably encompass eliminating a state that is a persistent menace to international peace.

But given the Charter’s ambiguous text, the circumstances of the U.N.’s creation, and the relationship between the U.N. and its members, it would be hard to sustain such a broad reading.

Compromising a country’s territorial integrity is perhaps the greatest power the S.C. could have. While the Charter is not precisely a system of enumerated powers, it would be odd if such a massive power would not be specifically mentioned. Indeed, the United States cannot slice up states of the Union though it has a far greater degree of central, sovereign and vertical power over their constituent states than does the U.N. over its member states. Indeed, if the U.S.’s membership in the U.N. potentially subjects it to international control of its borders, it might violate the U.S. Constitution, Art. IV., § 3 (“no new State shall be formed or erected within the Jurisdiction of any other State. . . without the Consent of the legislatures of the States concerned as well as of Congress.”).

3) Assuming the Security Council can divide up a country, can it do so in ways that otherwise violate international law? Does the U.N. system set up a dictatorship where the S.C. is entirely supreme, unchecked by any external norms, or is the S.C. just part of the international bureaucracy subject to international law like any other. For example, would it be legal for the Security Council to pass a resolution authorizing, in the name of order and stability, Ethiopia to annex Somalia? Iran to annex Iraq?

The U.N. presence in Kosovo was made possible by NATO bombing Serbia into submission. The war was not authorized by the Security Council and clearly violated the most important elements of the U.N. Charter, to say nothing of killing hundreds of Serbian civilians.

It is an unquestioned axiom of international law (which I hope to question in a subsequent post) that territory cannot be taken by force. The purpose of the prohibition is to prevent the illegal use of force, though most scholars say it also applies to legal use of force, i.e., self-defense. Thus the humanitarian character of NATO’s intervention should not change matters, as this is at best a quasi-legal use of force.

NATO’s conquering Kosovo and wresting it from Serbia seems to violate this core norm of international law. It should not matter that NATO acquired the territory to turn it over to a third-party (the Albanians), just as it would not matter if China conquered South Korea to turn it over to North Korea. NATO is certainly not acting out of entirely altruistic motives, anymore than the U.S. is in Iraq. NATO’s actions may also have been motivated by a desire to avoid having to deal with Albanian refugees; a retributive attitude towards the Serbs, who were cast in the role of the bad guys in the Balkan wars of the 1990s; and of course, “Wag the Dog.” That NATO’s actions have not been dictated purely by a desire to stop ethnic cleansing is evidenced by the fact that, after having occupied Kosovo, it did not stop the ethnic cleansing of the Serbs by Alabanians — which evicted most the provinces Serbis, despite formal international promises to protect them.

In this light, the U.N.’s current efforts seem like an attempt to grant legitimacy to a manifest violation of its own charter to justify or deflect attention from its complete failure to live up to its promises to Kosovo’s Serbs.

4) A final question concerns the contradictory international approaches to partition. In Kosovo the U.S. and the U.N. favor partition. Yet the same approach is ruled out within Kosovo itself – the U.N. rejects secession by the majority-Serb region, which wishes to join Serbia in the even of a Serbia-Kosovo split. Similarly, even as the two-state solution is demanded for Serbia, it is rejected for Iraq, and even Cyprus, where it is already a fait accompli. For someone who is truly not a partisan of either group, it is hard to see it as a testament to the justice or fairness of the U.N. and the “international community” that the Albanians get two states, while the much more numerous Kurds get zero. Indeed, the list of places where the demands of violent secessionists for independence are ignored by the international community is almost as long as the list of places with violent secessionists making such demands.

The reasons for this will be explored in a future post. But at first glance, it seems hard to see anything more than ad hoc politics behind these patterns. Nations support partition when they hope for diplomatic benefits and reject it when they think it will cause problems for themselves. The calculations are purely selfish, but in all cases justified with reference to international law – either “self determination” on the one hand, or “territorial integrity” on the other. But the haphazard way in which these principles are applied suggests they have little substantive content.

5 Responses

Prof. Kontorovich,

I agree with some of the points that you have made, but I do indeed disagree with some of the questions of principle that you have put forward, as well as with a part of your application of these principles to the Kosovo situation. Just to make my biases, if any, explicit at this point, I am a Serb, and at that a Serb who did his best (I hope) to fight the Milosevic regime while it was still in power (unlike most of my compatriots), and also a Serb who endured personally all of the 70 plus days of NATO’s bombing of Serbia in 1999. That being said, it is not my intention at all to defend the Serbian position here, but I have the following comments:

(1) Powers of the Security Council

This is I believe the most legally significant part of your post, as you raise many provocative questions. Most of these issues, however, in my view already have a satisfactory legal answer, and I don’t think that your analogy, however cautious, with the enumerated powers in the US Constitution is at all appropriate. Though the theories of implied or enumerated powers have been discussed extensively in the literature on international organizations, this I think exemplifies the type of ‘internal law thinking’ which is usually perilous in international law.

The UN Security Council indeed has enormous powers, and the Council itself is the primary judge of the scope of its own powers (see, e.g, the ICJ’s Advisory Opinion in Certain Expenses of the United Nations, ICJ Reports 1962, p. 168). The final judges of the Council’s powers are the UN member states, through their collective practice and opinio juris. It is, in other words, the customary interpretation of the Charter and the Council’s authority that counts most, not some technical interpretation of the text of the Charter, which, as you say, is very broad and general.

Let me give you an example: most people are not aware that a major part of the Serbian legal profession not only considers that the ICTY is a bad, unjust, and an anti-Serbian court, but to this day disputes the very legality of the ICTY’s creation by the Security Council in 1993, by Resolution 827. As an example, the heading of the chapter on the ICTY in the still official textbook on international law at the Belgrade University is the ‘International Criminal “Tribunal” for the former Yugoslavia.” No theory of enumerated or unenumerated powers or simple textual interpretation can resolve the issue of whether the Security Council can create a criminal court – the sole conclusive factor is the Council’s practice, such as its subseqent creation of the ICTR and the referral the Darfur situation to the ICC, and the overwhelming acceptance of such practice by the UN member states.

The same goes for the Council’s powers in relation to state partition – they depend, somewhat tautologically, on how the UN member states themselves view the Council’s powers. It is important to note that the Council exercised similar powers before, for instance in relation to the independence of East Timor.

That being said, the Council is constrained by law, and may not violate the Charter (see, e.g, Article 24(2)) or any rule of jus cogens. Though it exercises considerable discretion in (1) assessing whether there is a threat to or breach of international peace, and (2) in deciding what to do about it, its actions are still not unreviewable. For instance, the ICTY Appeals Chamber has itself ruled in the Tadic case on the validity of the establishment of the Tribunal, finding that ‘the wider the discretion of the Security Council under the Charter of the United Nations, the narrower the scope for the International Tribunal to review its actions, even as a matter of incidental jurisdiction. Nevertheless, this does not mean that the power disappears altogether, particularly in cases where there might be a manifest contradiction with the Principles and Purposes of the Charter.’ (para. 21 in fine).

(2) Self-determination of the Kosovo Albanians

Though I agree with you that the 1999 NATO intervention was a violation of the UN Charter, as even if there was a rule of international law permitting humanitarian interventions, the Kosovo case did not fulfil the necessary requirements. That, however, has little bearing on the issue of Kosovo’s independence. Even though the use of force by NATO was the practical prerequisite for the Kosovo Albanians to achieve independence, the legal title of any territorial change is not the use of force, but the Kosovo Albanians’ right to self-determination.

They indeed have this right, particularly because they have been victims of oppression. You say, correctly, that NATO’s bombing killed hundreds of Serbian civilians, but you neglect to mention that Serbian forces killed several thousand Albanian civilians during this conflict, and that they forcibly expelled and displaced more than 800,000 innocent people in a deliberate policy of ethnic cleansing. For this crime the Serbian leadership of the day is now rightly being tried for here in The Hague. This crime also did not happen in the distant past, and memories of it run deep in both Kosovo Albanian and in Serbian society.

It is true that the Albanians are also misrepresenting themselves as victims of decades of apartheid and genocide, and it is also true that they have committed grave crimes against the Serbian minority in Kosovo after the 1999 conflict, with Serbs now practically living in ghettos. Moreover, the Kosovo Albanian political class is also responsible, by setting its ultimate goal as independence as early as in the eighties, for not cooperating in any way with the Serbian opposition to Milosevic, thereby allowing him to exploit the Kosovo situation in order to tighten his grip on power in Serbia. That, however, does not in any way excuse or decrease the magnitude of the crimes committed against the Albanian population of Kosovo by the Milosevic regime, which are basis for their right to self-determination.

That being said, the Kosovo society is in a sorry state of affairs. It is a also a very pathetic sort of independence they are going to get, as they will be under constant international tutelage. The key issue in the present Kosovo crisis is not any independence in reality, because they will have little, or Serbia’s sovereignty in reality, as even in the best case scenario it would have less than little, but the fight of Serbia’s and Kosovo’s political classes over symbolism, and over their own political survival in an irrational electorate.

(3) Political nature of the issue

This brings me to my final point, and that is that issues of self-determination and creation of states have always been much more political than they are legal. Indeed, the creation of a state is THE political act, and legal justifications are usually just post-hoc rationalizations of what has happened in reality.

Whether Kosovo gets formal independence which is recognized by most states in the international community, and is finally admitted into the UN, or whether it gets a sui generis, Taiwan-like status, is yet to be determined. That depends most of all on the accord of the great powers, and of the US and the EU reaching some sort of agreement with Russia. Russia’s interests in the matter are much more complex than its usual portrayal as a protector of the Serbs, and it might even welcome Kosovo’s independence as it would further its own territorial pretentions in separatist republics in the Caucasus or in the Moldovan rebel territory of Transnistria, discussed previously by Chris Borgen.

Creation of states always depended on such considerations, and international law certainly is there, but is far from mandating a specific outcome. There was once no state of Eritrea, but now there it is, and the law has little to with it. In that regard, any weeping over Serbia’s fate is inappropriate. It abused its sovereignty, and will now suffer the consequences. And, I say this as a Serb, Serbia deserves whatever it gets, and its people, elites and political class have to learn to deal with it.

Marko Milanovic

2.06.2007
at 6:03 am EST Marko Milanovic

The U.N. presence in Kosovo was made possible by NATO bombing Serbia into submission. The war was not authorized by the Security Council and clearly violated the most important elements of the U.N. Charter, to say nothing of killing hundreds of Serbian civilians.

I’m sure that both NATO commanders and former president Clinton will be brought to justice in a timely manner. If the assorted posters to our previous discussion with Mr. Bellinger, those who essentially accused him of abetting war crimes, need any further evidence as to the likelyhood of charges, they need only look here.

Let me give you an example: most people are not aware that a major part of the Serbian legal profession not only considers that the ICTY is a bad, unjust, and an anti-Serbian court, but to this day disputes the very legality of the ICTY’s creation by the Security Council in 1993, by Resolution 827

I was unaware, but I can’t see it as remarkably suprising. A similiar demand for supremecy over another countries’ criminal court lead to World War I.

2.06.2007
at 10:49 am EST Matthew Gross

On the question of the powers of the Security Council, I am not quite sure that all the arguments advanced by Professor Kontorovich really hold. But neither am I at all sure that they don’t. I express no firm view on this.

On the point that ‘[c]ompromising a country’s territorial integrity is perhaps the greatest power the S.C. could have’, could it not be said that the power under Article 42 of the Charter, the power to use military force (originally, of course, designed as force used by the UN, not only with UN backing, as it turned out), is just that, a power to compromise a sovereign State’s territorial integrity? After all, the dominant view on the interpretation of Article 2(4) of the Charter is that the use of military force against a State on its own territory will always violate that State’s ‘territorial integrity’.

Now, it might be said that SC enforcement action under Article 42 of the Charter will always be limited to the enforcement aspect at hand, and therefore respect the territorial integrity of the target State in principle, whereas the action now contemplated would forever annihilate Serbia’s sovereignty over Kosovo.

[I could imagine that this point will resurface, at least in my mind, when Prof Kontorovich comes round to questioning the rule that territory cannot be taken by force. This is because, if sovereignty over an area can in fact be established by military force, any armed enforcement action under Article 42 designed to restore the state of affairs before the war would disrespect the aggressor State’s newly established sovereignty over the annexed territory.]

But then, could it not also be said that to compromise a State’s sovereignty by means of the use of force is a lot worse than to merely reduce such sovereignty by law? The preamble to the Charter, and its reference to ‘the scourge of war’ may be mentioned here.

On the ‘enumerated powers’ question, I am not quite sure I see the point made by Prof Kontorovich and by Marko Milanovic. In a sense, the UN is of course subject to the principle of enumerated powers (it may be that the usual technical phrase escapes me), in that it does not have original and general jurisdiction to do anything it likes (also known as sovereignty). It is an international organization, and as such it has only the powers granted – explicitly or by implication – by its constituent instrument, the Charter. The PCIJ and the ICJ have made this point more than once, as has, of course, the Court of Justice of the European Communities; a recent article by Dr Chester Brown (‘The Inherent Powers of International Courts and Tribunals’, in the latest edition of the British Yearbook of International Law) collects a number of authorities for the proposition (all of which escape me, I am sorry to say).

But be that as it may, this basic principle seems to be very far from helpful. So far as I know, noone has yet suggested that the SC can do absolutely everything. The argument has always proceeded from an interpretation of the powers under the Charter. And these powers are framed so broadly that it does not advance the cause of the SC’s critics to protest that they are exclusive. They are, but the question only arises once it has been decided that the Charter provisions themselves do not apply, and this is extremely difficult.

I am a little surprised by the references to the US Constitution.

As for the reference to the enumerated powers doctrine, this may not be at all wrong. The United States (as the federal level, not the State as a whole) and international organizations both depend for their powers on some form of authorization for much the same reason, namely the absence of original general jurisdiction, or sovereignty, in both cases. But the analogy to US constitutional law was not necessary, as international law clearly says the same thing, and quite uncontroversially so. (Unless I am missing the point, which may well be the case)

The idea that the SC power under discussion might be in violation of the US Constitution I cannot find relevant. It is obviously axiomatic that domestic law cannot affect questions of international law (unless authorised to do so, as e.g. by the clauses in human rights treaties allowing for limitations by law). The argument could therefore only be relevant in the sense that the parties did not envisage this interpretation of the Council’s powers, as demonstrated by the very real possibility that the US would never have ratified the Charter had it known that the SC would have that power.

But the US never had a reason to fear. It has a veto in the SC, and so would never have been subjected itself to any form of SC enforcement action. Indeed, had the US not had that assurance, and had it envisaged that the UN might authorise Article 42 action against the US, they would almost certainly not have accepted the Charter anyway. After all, the veto regime was put in (or rather, accepted at San Francisco) specifically to get the major powers on board. As it is, the United States is quite possibly the greatest advocate of immense SC powers imaginable, as the negotiations for the 1998 Rome Statute of the ICC have shown.

I do, however, accept that a power in the SC to take away territory from a sovereign State, and give it its own sovereignty, would be quite something. If the SC can even annihilate States (which Prof Kontorovich seems to suggest might be the basis for the Kosovo plans), can it really be said that the Council is there to serve the States? And does this not raise very basic problems in the law of treaties? I am not quite sure.

But I would not wish to end this comment without making a legal point against this power in the SC myself (as opposed to criticising the views of others): on the basis of Prof Kontorovich’s remarks about the rule against the acquisition of territory by the use of force, could it not be said that this rule ranks as jus cogens, and that even the Council is therefore bound to respect it? I seem to recall that Dr Alexander Orakhelashvili has made this point (‘The Impact of Peremptory Norms on the Interpretation and Application of Security Council Resolutions’, European Journal of International Law 16 (2005), pp. 59 et seq.).

It would seem incontestable that even the SC must respect jus cogens (as Judge ad hoc Sir Elihu Lauterpacht has said in the Bosnian Genocide case, at para. 100), but the real question seems to be whether the rule in question really does come to the level of a peremptory rule of international law.

On that, I look forward to Prof Kontorovich’s post about this rule of non-recognition.

I do believe that the prinicple of external “self-determination” has only been recognized in the context of (1) colonialism; (2) foreign occupation or (3) deprivation of rights of the minority population (and the 3rd point is very problematic). I don’t think that any of the aforementioned points can be applied to Kosovo per se, and if they are stretched to include Kosovo, that would pose significant and uncomfortable precedent for future unilateral secessions by minorities (Trans-Dnestr) for example.

2.07.2007
at 11:08 am EST Vovan

In response to Mr. Milanovic’s “Self-determination of the Kosovo Albanians” argument:

I don’t agree that Kosovo Albanians benefit from the full scope of the right to self-determination, especially not simply because they were opressed. The UN system cleary recognizes this right in its full scope only in relation to “peoples” or “nations”, not in relation to ethnic minorities which Kosovars in Serbia are, just like the Vojvodina Hungarians. The right to self-determination in its ultimate form (creation of a nation state) can thus be used only once for a particular nation and the Albanian nation has used its right to form a nation state based on self-determination by forming the neighbouring Albania. By arguing that the Albanian minority in Serbia has that same right you are arguing that ethnic minorities in any country have a right to self-determination irrespective of wheter a “motherland” country exists or not which means that any nation has the right to exercise its self-determination right by forming as many states as it pleases in countries which host its ethnic minorities and that’s simply not the case. Minorities can exercise their right to self-determination to the level of cultural autonomy but not to the level of a separate state.

2.07.2007
at 4:16 pm EST Tihomir Mak

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